Covid-19 and Economic Recession as two Concurrent Global Crises. Engulfing Supply Chain Workers

Two Concurrent Global Crises; ‘Covid-19 & An Economic Recession' Engulfing Supply Chain Workers Business and Human Rights Law

The year 2020 has been filled with great uncertainty and fear emerging due to a deadly health crisis; Covid-19, which has resulted in strict lockdown restrictions across the globe, businesses being shut, borders being closed and as a result, our economy is collapsing. The Covid-19 pandemic has exposed the vulnerability of global supply chain workers who are at a risk of immense human rights violations due to a lack of accountability, visibility and mechanisms to prevent, address and monitor adverse human rights impacts. This has once again raised the controversial question of whose job is to protect vulnerable workers in global supply chains amidst a health and an economic crisis. This paper aims to discuss the lethal effect of the Covid-19 pandemic on vulnerable garment workers in the global supply chain as well as suggest practical short term measures which can be implemented to protect vulnerable workers from the coronavirus, increased poverty, mass layoffs and economic recession. According to the UN Guiding Principles, businesses have a responsibility to respect human rights by avoiding causing or contributing to adverse human rights impacts as well as addressing violations when they occur by implementing mechanisms to prevent and mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.¹ The scope of corporate responsibility in relation to adverse human rights impacts in their supply chains and how such responsibility can be effectively enforced will also be discussed. The Covid-19 pandemic has highlighted a need for the global supply chain model to be transformed to reduce the exploitation of vulnerable workers amidst difficult and unprecedented times. Over the years, there have been developments of soft laws such as the UN Guiding Principles and hard domestic laws within the business and human rights sphere. However, there is a need for a binding treaty which unravels the confusion of international legal standards in accordance with the business and human rights framework whilst increasing transparency and improved mechanisms for accountability. Concurrently, it may seem like a utopian dream to completely eradicate human rights violations occurring in the global supply chains, however with effective mechanisms and safeguards in place, the damage caused to vulnerable victims can certainly be reduced by holding companies to account and setting strict international standards to follow. Furthermore, to mitigate the drastic effects of economic losses caused by the Covid-19 pandemic, there is an urgent need for collective efforts from states and companies to support developing countries and vulnerable workers who are at a risk of human rights abuses.

Whose Job is it to protect global supply chain workers?

In 2011, the United Nations Special Representative on Business and Human Rights, Professor John Ruggie proposed the Guiding Principles on Business and Human Rights to address states and businesses to prevent and remedy human rights violations carried out in business operations.² In accordance with the UN Guiding Principles, states have a duty to protect human rights, corporations have a responsibility to respect human rights and provide an effective remedy to victims through both judicial and non-judicial mechanisms. However, an increase in globalisation and outsourcing of supply chains, has resulted in contributing to violations of human rights and made it extremely complex and challenging to protect global supply chain workers for both the states and businesses. The difficult challenge has been exacerbated by the Covid-19 Pandemic and has raised various issues such as accountability, due diligence, responsibility and transparency regarding whose job it is really to protect the vulnerable supply chain workers. Is it the states duty to protect human rights violations through the domestic legislature or are companies responsible for respecting human rights not only in their countries but also in their supply chains? Victims of human rights abuses in global supply chains find themselves trapped between two actors; states and companies, who lack the will to completely resolve the issue. Additionally, the United Nations Global Compact Principles provide businesses with an international standard to adhere to certain requirements under the framework of four main areas; human rights, labour, anti-corruption and environment.³ Currently, the UN Global Compact and Guiding Principles are the only set of the framework which provide states and businesses with a set of guidelines around the business and human rights sphere. However, they are limited in the sense that they are not legally binding and heavily rely on the goodwill of states and businesses to incorporate the protect, respect and remedy framework in their practices as well as because it is a basic societal expectation of businesses to protect human rights.

The controversial debate of whose job is to protect supply chain workers remains an unsolved issue despite it being the 20th century due to an absence of hard law within the business and human rights sphere. Under the UNGP BHR framework, states have a duty to protect human rights violations by passing laws that prevent human rights abuses as well as to ensure that the laws are implemented effectively through mechanisms such as regular inspections and auditing. This is indeed a step forward in addressing human rights abuses in supply chains, however there is still a lot that needs to be done. The states must implement laws and regulations which aim to protect human rights violations committed by businesses as well as hold companies to account if they violate any laws. The global nature of supply chains raises obscurities regarding whether supply chains are bound to follow legislation in their operating countries or whether the legislature of where the company is based in is applicable. The perplexity results in human rights violations as companies are either unaware of what occurs in their supply chains due to a lack of visibility and transparency as well as a will to find out the conditions in which the workers are working under to develop appropriate responses of prevention and mitigation. The current crisis has highlighted that it is not sufficient for businesses to only respect human rights in their operating countries but also have a responsibility to adverse human rights impacts in their supply chains. In countries where the rule of law is weak, the states often fail to protect human rights violations in business operations as well as fail to provide effective remedy. Companies need to ensure that they are aware of their adverse human rights impacts and ensure that they take feasible steps to address and prevent further violations by conducting frequent supplier audits.

The Covid-19 pandemic and an economic crisis has urged a need for improved human rights due diligence measures for businesses to effectively identify, mitigate and respond to human rights abuses occurring within their global supply chains.⁴ Companies must perform human rights due diligence through mechanisms such as monitoring, auditing, reporting and assessing to mitigate potential risks. Companies are required to act diligently by providing victims with a platform to file grievances as well as engage in the process of addressing their concerns of human rights violations to prevent them from recurring. States must provide remedy to victims by ensuring that they have legitimate judicial or non-judicial mechanisms in place to report such violations without any fear of retaliation. This can be achieved by using courts, OECD national contact points or tribunals. The remedy system must be legitimate, accessible, transparent and equitable as well as align with the criteria mentioned in the United Nations Guiding Principles. If the remedy system is time consuming, expensive or inaccessible for global supply chain workers; it is not considered as an effective remedy. States and companies are both required to provide access to effective remedy for victims if their human rights have been violated as a result of a business practice.

It is apparent that both companies and states have a responsibility to protect supply chain workers, however a lack of stringent international mechanisms places vulnerable workers at a risk of human rights abuses. Over the years, companies have adopted various voluntary initiatives such as corporate social responsibility to acquire a social image as well as benefitted by publicising their good deeds to justify any wrongdoings or negligence in supply chains when subjected. However, the Covid-19 pandemic has highlighted that not much has changed in practice and voluntary measures alone are not sufficient to effectively protect the most vulnerable supply chain workers beyond the first tier of suppliers as well as hold the companies to account.

How has the Covid-19 Pandemic affected supply chain workers?

The Covid-19 pandemic has placed millions of global supply chain workers at a risk of losing their jobs without any social protection. Businesses have endorsed cost cutting measures to sustain their operations amidst two concurring crises which have affected both supply and demand. Due to the economic strain caused by the pandemic, Multinational Corporations (MNCs) have been cancelling orders and are placing production on hold due to the shocking impact on supply and demand while neglecting the impact of their decision on the vulnerable supply chain workers. In particular, the garment industry workers within the Global South have been severely impacted due to a large number of workers employed under the gig economy. Migrant workers, as well as low paid daily wage earners, are amongst the vulnerable group as they are unprotected and usually do not have access to social protection or other benefits such as paid or sick leave. European retailers have invoked forced majeure clauses to cancel orders worth $1.5 Billion USD from one of the world's biggest garment exporters, Bangladesh which will drastically impact the lives of almost 1.2 million workers.⁵ Despite contractual obligations to pay for orders, companies are relying on force majeure clauses to legitimise the violations of their contractual obligations. However, fashion law experts argue that force majeure clauses are inapplicable as they do not specify pandemics as a condition for withholding payments and evoking it upon the most vulnerable workers at the lower tiers of the supply chain is unjustifiable.⁶ As a result of the Covid-19 pandemic, The International Labour Organisation has estimated that an approximate of 25 million jobs across the globe could be lost while placing vulnerable global supply chain workers on risk due to the closure of factories, mass layoffs and unprecedented furloughs.⁷ Supply chain workers in the garment industry of Bangladesh have already started losing their jobs, wages and even their lives because of the Covid-19 pandemic due to poor working conditions.

The Covid-19 outbreak has resulted in an immense economic disruption due to enforced preventative measures such as social isolation, lockdown restrictions and limited human movement to impede the infectious spread which in return has affected the production and consumption of goods. To tackle the deadly health crisis, countries have also limited cross border movement by restricting international travel or by closing their borders. As a result, the flow of international goods and services has been obstructed and has led to immense disruptions in global supply chains.

Businesses are facing extensive financial difficulties and are taking urgent short term steps to minimise costs by placing the livelihood of vulnerable supply chain workers within the garment industry on risk by cancelling orders, placing them on hold until demand increases or are refusing to pay for orders that have already been produced by the suppliers.⁸ This has placed suppliers in a vulnerable position by shutting down production companies or reducing work hours and has placed millions of low daily wage earners in a helpless situation, fighting for their survival. In Bangladesh, a survey of garment suppliers has deduced that 98.1% of buyers have refused to contribute to the cost of paying wages to temporarily dismissed workers as well as 97.3% buyers have refused to contribute towards severance pay expenses. However, this violates the law as under section 26 of the Labour Act in Bangladesh, workers are entitled to receive severance pay if employment is terminated without any adequate reason.⁹ Many international brands have failed to support their suppliers amidst difficult times despite having responsible exit policies as part of their responsible business conduct in place in which they commit to mitigate potential human rights violations and support suppliers when they decide to withdraw from business relations. As a result, workers have been unfairly dismissed without any compensation, legally mandated or severance payments and has drastically impacted the livelihood of many vulnerable workers.

Many international brands have failed to comply with responsible business conduct due to financial difficulties and have left suppliers as well as global supply chain workers in devastating circumstances without adequate support. The destructive impact of order cancellations on global supply chains amidst crisis has illustrated the drawbacks of the current supply chain model. For decades, companies have relied on increasing profitability by exploiting supply chain workers through cheap labour. The outsourcing of manufacturing processes in developing countries with a weak rule of law to protect victims has contributed to the growing number of adverse human rights impacts committed by companies across borders. The fragility of supply chains in developing countries such as Bangladesh has immensely harmed workers due to factory closures and lockdown restrictions as they are unable to earn their daily wages and have little to no savings to survive poverty in such difficult times. The lack of social support available to victims and the limited ability of state to support struggling suppliers and workers has heightened the strain levels amongst vulnerable workers.¹⁰

Many businesses have also responded to the Covid-19 crises by altering their production to meet the demand of items such as face masks, sanitisers or ventilators required to tackle the deadly health pandemic. However, to meet the increasing demand of preventative equipment, supply chain workers continued to work in precarious conditions. In developing countries, the enforcement of protective measures is poor in accordance with the WHO guidelines which aim to protect workers in the workplace by preventing and minimising the spread of Covid-19.

Employers have a duty of care to protect their employees under the corporate social responsibility dimension. In Bangladesh, garment supply chain workers have received inadequate personal protective equipment as well as advice regarding precautionary measures to protect against the virus. Many supply chain workers are at a risk of transmitting the virus due to a lack of standard operating procedures implemented as well as poor awareness of severity of the pandemic. Companies need to ensure that they respect human rights by providing effective support to affected victims if they are required to self­isolate or seek medical aid.

The scope of corporate responsibility in relation to adverse human rights impacts in supply chains

The corporate responsibility to respect human rights requires businesses to conduct human rights due diligence to address, identify and mitigate adverse human rights impacts in their supply chains with a focus on the triple bottom line framework. The management of global supply chains is a complex and challenging affair. The UNGP have provided a clear benchmark in terms of who is responsible for protecting human rights violations within the business sphere hence why the question of whether states and businesses should be involved in protecting global supply chains has now moved to how they should be engaged in preventing and addressing human rights violations committed in their business operations as well as implementing effective mechanisms to provide remedy for victims. There is still a need for better implementation to address such abuses, however setting a standard of expectation of what is required of states and businesses regarding human rights is a step forward and will cave its way to developing effective and appropriate mechanisms to address human rights violations.¹¹

Over the years, businesses have adopted various voluntary measures such as corporate social responsibility (CSR), multi stakeholder initiatives (MSIs) or have implemented voluntary codes of conduct to address human rights abuses such as labour exploitation, however it is argued that they tend to benefit corporations and management instead of the workers they claim to benefit.¹² The Covid-19 pandemic has highlighted that there is a need for corporate responsibility to be enforced effectively in relation to adverse human rights impacts in their supply chains. Businesses need to be held accountable for human rights violations occurring in their supply chains as they are not only responsible for their direct employees but are also responsible for every person involved in their business operations. The lower tier of supply chain workers has not only been directly impacted by the cancellation of orders amidst a pandemic but also factors such as poverty, poor health and financial difficulties have had a lethal effect on their livelihoods. The Covid-19 pandemic has brought light to how businesses need to look beyond the first tier of their supply chains to the bottom end to effectively meet their responsibility to respect human rights of the most vulnerable workers and protect them from recurring abuses while focusing on a prevention and a mitigation approach.

The current crisis has put corporate responsibility to test and has made it clear that corporate responsibility alone is not sufficient to address adverse human rights impacts in supply chains. Simply relying on soft laws and the goodwill of businesses to respect human rights allows them with a space to exploit vulnerable victims due to poor due diligence, accountability and transparency mechanisms. The corporate responsibility to respect human rights needs to be effectively enforced via hard laws with strict transparent auditing. Businesses need to understand that by acting in a corporate responsible manner in their supply chains; they will benefit by building a sustainable supply chain which offers competitive opportunities to benefit them as well as will stand a bigger chance to survive amidst crises by sustaining their operations during difficult times without violating human rights. Arguably, CSR is important for compliance purposes and to acquire a social image however in the long run, it is extremely beneficial for all stake holders. The Covid-19 pandemic has exposed the fragility of the current supply chain model and how unprepared companies were to address human rights violations during a period of crisis. There is an urgent need to adapt practices which are long lasting to aid post Covid-19 recovery as well as mitigate the adverse impact of crisis on vulnerable supply chain workers.

Currently, companies are facing many challenges and amongst one of them is that they cannot efficiently mobilise due to confinement measures hence, it is crucial to maintain a transparent relationship with suppliers to abide with corporate responsibility. Amidst a pandemic, corporate responsibility remains a challenge as businesses are being forced to shut down and with cash flows reduced, businesses are focusing on cutting costs to sustain during difficult times. This is where the question of corporate responsibility being looked upon as an option arises and calls for a strict enforcement to protect the most vulnerable. In times of crisis, all stakeholders should cooperate to respond to challenges in a cohesive manner and share resources to protect the ones most at risk.

How can corporate responsibility effectively be enforced?

In the context of the current Covid-19 pandemic, the need to effectively enforce corporate responsibility to adverse human rights impacts in supply chains is more important than ever. As companies face financial difficulties amidst unprecedented times, it is critical for them to respond to the growing crisis in a responsible manner as it will be remembered by suppliers and workers for decades. Corporate social responsibility needs to be effectively enforced to deal with challenges as they can make or break the companies post the crisis period. The Covid-19 pandemic has emphasised the devastating impact of cancelling orders and other cost cutting measures on vulnerable workers at the bottom of the supply chain, who are not only facing a threat to their health but an increase in poverty and unemployment without adequate social protection has placed them in a confronting situation. To effectively enforce corporate responsibility amidst the Covid-19 pandemic, the following strategies and approaches can be favourable:

- Implementing hard laws to protect human rights violations
- Enforcing effective grievance mechanisms to report violations
- Executing regular auditing & publishing transparent reports
- Providing PPE to protect workers from the risk of Covid-19
- Developing a crisis management plan to respond to the crisis

Corporate responsibility is based on an interdependent relationship between businesses and societies which simply cannot only rely on the goodwill of corporations to protect supply chain workers. We cannot continue to place the lives of the most vulnerable workers on risk for our own benefit.

Hence, there is an urgent need for multinational firms to take corporate responsibility seriously. For example, In India, under section 135 of the Companies Act 2013, there is a mandatory provision of corporate responsibility which requires large companies to set aside at least 2% of their net profit towards CSR with regular monitoring.¹³ Across the globe, there are calls for CSR to be made mandatory under domestic law. To deal with current challenging times, corporate responsibility needs to be legally enforced to see its effectiveness and not heavily rely on the goodwill of corporations. For corporate responsibility to be effectively enforced, businesses also need to strengthen their relationship with their suppliers as well as implement mechanisms which increase visibility and transparency to manage risks and violations by preventing, detecting and responding to potential supply chain risks. Short term steps such as educating supply chain workers regarding Covid-19 preventative measures, ensuring workers are not penalised for taking time off to isolate when ill, paying for orders that are currently in production or have been completed as well as ensuring that supply chain workers receive appropriate severance payments need to be implemented immediately to cope with the challenges by incorporating intensive monitoring and reporting mechanisms.

Can a BHR Treaty protect global supply chain workers?

In times of crisis, it is crucial for states and corporations to develop a well- coordinated response to mitigate the harm and sustain businesses during uncertainty. The Covid-19 pandemic has illustrated the vulnerability of supply chain workers due to factors such as poverty, lack of awareness, ineffective reporting and grievance mechanisms placing them at a risk of exploitation. The decades long negligence has concluded that something is clearly not working adequately and has raised the controversial debate of whether there is a need for a business and a human rights treaty to legally bind companies and states to follow set standards to fill the current regulatory gap as well as to ensure that they act in due diligence as an idealistic approach. A business and human rights treaty will impose enforceable obligations upon states with adequate safeguards in accordance with due diligence to provide effective protection to supply chain workers who have been victims of human rights violations committed by companies. A victim centred treaty which genuinely aims to prevent human rights abuses by enforcing realistic monitoring and reporting mechanisms as well as by providing victims with an effective access to remedy is critical to address the growing vulnerability of supply chain workers. However, as a realistic approach, an international treaty will not completely eradicate adverse human rights impacts committed by businesses in their supply chains as it will heavily rely on the will of states to become a signatory party and ratify it effectively unless the proposing draft explicitly states how it will be beneficial for all civil society actors and stakeholders. While a legally binding treaty is favourable, it is important to note that to effectively combat human rights abuses in global supply chains, a combination of existing elements is required to develop a stringent regulatory framework which aims to benefit all.

Covid-19 - An imperative to transform the current Supply Chain Model

For decades, companies have been profit driven and focused on minimizing costs by neglecting supply chains to increase profits. However, the Covid-19 pandemic has illustrated that the current supply chain model faces threats as corporate responsibility alone is not sufficient to prevent adverse human rights impacts. The current model has exposed that it is not flexible to absorb such global shocks and disruptions due to a lack of preparedness and resilience. This raises a need for a new supply chain model which consists of safeguards to protect supply chain workers while focusing on a victim centred approach. A transformed global supply chain model with a focus on workers will assist in business continuity post the crisis period. Risks to global supply chain workers must be identified, assessed and addressed via appropriate grievance mechanisms.

Supply chains need to implement better logistics to keep the flow of goods amidst a pandemic and avoid further disruptions as well as ensure that there is an effective risk assessment and management strategy. Coherent collaboration between states and companies in a timely manner needs to be a part of the contingency plan to develop a coordinated plan. Furthermore, a lot of issues have arisen due to a lack of transparency and visibility of supply chains. Many companies are unaware of their supply chains beyond tier 1 which raises the question of if companies are not aware of the risks or violations that occur in their supply chains, how can they potentially prevent and address them? The new supply chain model needs to focus on increasing visibility and transparency as this will allow companies to establish strategies to prevent, address and respond to potential risks and human rights violations effectively.

Conclusion

Two concurrent global crises; Covid-19 pandemic and an economic recession are challenging two of the most important actors; states and corporations in terms of respecting human rights in their supply chains amidst unprecedented times. The Covid-19 pandemic often referred to as a black swan event is still an ongoing crisis hence why it is difficult to assess the complete economic damage caused by the crisis. It is crucial for states and businesses to adopt a person-centred approach to sustain the grappling supply chains as well as implement safeguards to protect vulnerable victims from adverse human rights impacts beyond the crisis period. To deal with the economic and human rights consequences of the pandemic in global supply chains, there is an urgent need for states and companies to come together as one in order to coordinate and develop an effective response which focuses on sustaining the supply chain models by protecting vulnerable workers. The Covid-19 pandemic has also highlighted the drawbacks of global supply chains amidst a pandemic as disruptions in manufacturing processes fractured the supply chains, resulting in delays and shortages. International coordination and resilience is pivotal in tackling two concurring crises as well as sustaining global supply chains post pandemic period. Furthermore, in accordance with the UNGP, businesses have a corporate responsibility to respect human rights in their own activities as well as through their business relationships within global supply chains. The concept of integrating corporate responsibility for business to acquire a social image has switched to a need to address challenges faced by supply chain workers during difficult times in accordance with the responsible business conduct.

This paper concludes by restating the importance of developing a comprehensive framework which incorporates elements such as soft laws, an international treaty, legally binding domestic laws and voluntary initiatives to mitigate adverse human rights impacts in supply chains. The Covid-19 pandemic has highlighted the regulatory gap which has placed millions of vulnerable supply chain workers at a risk of exploitation. Hence, to protect workers in global supply chains, it is crucial to not only rely on corporate responsibility but instead focus on a combined framework which is effectively implemented and enforced with appropriate mechanisms and safeguards in place to prevent, address and mitigate adverse human rights impacts committed by business operations.

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[...]

¹ Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy' Framework, A/HRC/17/31, 2011, para. 13

² Ibid.

³ United Nations Global Compact, ‘ Navigating the future of business and human rights', (Jan 2019) <https://d306pr3pise04h.cloudfront.net/docs/publications%2FNavigating+the+Future +of+BHR.pdf>.

⁴ Human Rights Watch, Human Rights in Supply Chains (May 2016) <https://www.hrw.org/report/2016/05/30/human-rights-supply-chains/call-binding- global-standard-due-diligence>.

⁵ Arun Devnath, European Retailers Scrap $1.5 Billion of Bangladesh Orders (March 2020) <https://www.bloomberg.com/news/articles/2020-03-23/europe-retailers- cancel-1-billion-of-bangladesh-garment-orders>.

⁶ Vicky Young, ‘Thinking about Cancelling on your Factory? Here's what you need to know', (2020) Sourcing Journal.

⁷ International Labour Organisation, Covid-19 Protecting workers in the workplace (March 2020) <https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS 738742/lang--en/index.htm>.

⁸ Radu Mares, ‘Covid-19: Labor Rights in Global Supply Chains - Impacts and Responsibilities', Roaul Wallenberg Institute (April 2020).

⁹ Bangladesh Labour Act 2006 s 26.

¹⁰ Mark Anner, ‘Abandoned? The impact of Covid-19 on workers and businesses at the bottom of Global Garment Supply Chains', Centre for Global Workers' Rights (March 2020).

¹¹ Navanethem Pillay, ‘The corporate responsibility to respect: a human rights milestone', International Labour and Social Policy Review (2009).

¹² Brian Finnegan, ‘Responsibility Outsource: Social Audits, Workplace Certification and Twenty Years of Failure to Protect Worker Rights' (2013) AFL-CIO 3,4.

¹³ Companies Act 2013 (NCLT) s 135.